The objective of this article is to answer to the questions concerning the legal implications of temporary transference of foreign press correspondents (Temporary Work Visa n. 6) to the Brazilian territory. The research was conducted having internal legislation, international treaties, court decisions and doctrine revised.
1. Salary reduction
Since the Brazilian Federal Constitution, employees are protected by law against any kind of measures which could imply a reduction in salary, except when it had been negotiated in a collective bargaining agreement (article 7, clause XIII).
Considering that Brazilian Labour Law repute as ‘salary’ every kind of benefits which are paid in retribution and since it had been habitually done, all kind of benefits, such as cost of living allowances, cannot be reduced to be compliant with the Brazilian law. Thus, whether Brazilian law is applicable in case, no reduction might be allowed.
2. Conflict of laws
Going through the Brazilian statutes to international conflicts of law, we may find in the article 9 of the Introductory Law to the Civil Code that
‘to qualify and rule the obligations, will be applicable the law of the country where it was constituted’,
since the obligation was not intended to be executed in Brazil.
On the other hand, Superior Labour Court stare decisis n. 207, based on the Havana Convention on International Private Law, says that
‘the employment relationship is ruled by the law in force in the country where the services were provided and not by those of the place of assignment’.
Nevertheless, some court decisions says that, in case where foreigner employee is transferred to Brazil, the contract of employment shall be governed by the law of the country in which the employee had habitually carried out his work in performance of the contract, since the transference operation had been temporary, and not by the Brazilian one.
These decisions are in compliance with the article 6 of the Rome Convention on the Law Applicable to Contractual Obligations.
3. The Foreigners Act
According to the Brazilian Foreigners Act, foreign press correspondents provided with a temporary work visa cannot be remunerated by a Brazilian source of capital, under penalty of deportation (articles 98 and 125, clause VIII).
In compliance with this statutory disposition, the Brazilian Foreign Affairs Ministry, to the press accreditation of a foreign correspondent, demands for a letter from the press organization, on company letterhead, declaring that
(i) the foreign correspondent has a formal employment bond outside Brazil; and
(ii) the foreign correspondent salary will be full paid by the foreign press organization (home base).
Partial payment of salaries by press organizations with a national source of capital, pursuant explanations above, is illegal and could result on deportation penalty.
To the Labour Courts, it could be considered an element of connection, it means, something that could be point out amidst foreign correspondent and the Brazilian Company to link them, declaring the existence of an employment relationship in order to enforce the Brazilian law to the case.
On the other hand, in case the press organization stipulates that full salary will be paid by home base, having analyzed the general legal aspects of the matter, Brazilian Labour Courts tend to consider that Brazilian law is not applicable in case; thus, since the law of the country where employee had habitually carried out his work in performance of the contract allows it, benefits could be reduced.